Monday, August 27, 2012

Evaluating the American Constitution: Preamble and Purpose

The American constitution lays out six purposes for
government in the very first sentence. With those purposes counted off in
parenthesis, the preamble reads as follows:

“We the people of the United States
of America, in order to (1) form a more perfect union, (2) establish justice, (3)
ensure domestic tranquility, (4) provide for the common defense, (5) promote
the general welfare, and (6) secure the blessings of liberty for ourselves and
our posterity, do ordain and establish this constitution for the United States
of America.”

It is clear that the framers believed some version of those
six ends could sometimes justify the means of force and coercion. What is less clear
is what they meant by those ends. Unfortunately for liberty lovers like me, the
terms they use to describe them are pretty vague in today’s language,
particularly numbers two and five. Such broad terms seem to leave the
objectives American government may constitutionally pursue open for political
discretion. Was that the framers intent? Was that the understanding of the
people who ratified the constitution in 1789? Did they consent to a government
that could wield force on them for any reason? Or did they consent with a basic
understanding of which reasons were acceptable?

The commonly understood meanings of words like “justice” and
the “general welfare” have undoubtedly changed over the past 200 years. In
order to identify the intended purposes for American government, we must define
those terms in accordance with what they were understood to mean at the time of
their ratification. Thankfully for us, the political intellectuals of that time
were remarkably consistent in what they felt government’s just purposes to be.
Some of these thinkers spearheaded the revolutionary new ideas which were to
shape the constitution. Others helped write the document themselves, and still
others merely argued for it after it had been drawn up. But all of them
articulated the pervasive enlightenment ideas about government’s just role in
the era. What did they say?

Perhaps the biggest intellectual influence on enlightenment
political thought was John Locke. Among other important contributions to social
contract theory, Locke was among the first to describe the “natural rights” to
life, liberty, and property. He viewed God as the source of these rights, but
the point wasn’t so much religious as it was that these rights were inherent at
birth, and had no human source. Locke wrote:

“All mankind…being all equal and
independent, no one ought to harm another in his life, health, liberty, or
possessions.”

He specified the right to property by writing:

“Every man has a property in his
own person. This nobody has a right to, but himself.”

“Every
man has a property in his own person: this no body has any right to but
himself. The labour of his body, and the work of his hands, we may say, are
properly his."*

A primary purpose of government, Locke argued, was to punish
those who violated those rights. In his famous 1689 work "Two Treatises of Government", Locke argued that civil society was designed for the protection of "proprius", which in Latin means "life, liberty, and estate"(also translated as, "that which is one's own"). All of the founders were familiar with Locke’s
works, and his ideas had a profound influence on the principles that guided
them. Indeed, when Thomas Jefferson wrote the Declaration of Independence, this
was the one and only purpose which he gave to government:

“We hold these truths to be self-evident;
that all men are created equal, that they are endowed by their Creator with
certain unalienable rights, and that among these are Life, Liberty, and the
pursuit of happiness; that to secure these rights, governments are instituted
among men, deriving their just powers from the consent of the governed.” –
Thomas Jefferson

In one of the most important founding documents of our
country, Jefferson expressed the opinion of the Second Continental Congress
that governments were instituted “to
secure these rights”. In his 1801 inaugural address, Jefferson expanded on
what this purpose ought to mean in practice:

“A wise and frugal government…
shall restrain men from injuring one another, shall leave them otherwise free
to regulate their own pursuits of industry and improvement, and shall not take
from the mouth of labor the bread it has earned. This is the sum of good
government.” – Thomas Jefferson

This was the sum
of good government, meaning that it represented the whole of its parts. Jefferson
also wrote extensively on the dangers of adding too many more parts to that
sum:

“To compel a man to furnish contributions of money for the propagation of
opinions which he disbelieves and abhors, is sinful and tyrannical.” – Thomas Jefferson

“To take from one, because it is
thought his own industry and that of his fathers has acquired too much, in
order to spare to others, who, or whose fathers, have not exercised equal
industry and skill, is to violate arbitrarily the first principle of
association, the guarantee to everyone the free exercise of his industry and
the fruits acquired by it.” — Thomas Jefferson, letter to Joseph Milligan, April 6, 1816

“[I believe] that the legitimate
powers of government reach actions only, & not opinions.” – Thomas Jefferson,
letter to the Danbury Baptists, 1802

“I predict future happiness for
Americans if they can prevent the government from wasting the labors of the
people under the pretense of taking care of them." – Thomas Jefferson

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”-- Thomas Jefferson

The first sentence of that last quote is perhaps the greatest, most succinct summary of government's legitimate purpose of all time. It is clear from
these writings that Thomas Jefferson did not feel that any government action which
could be argued to “enhance justice” or “promote the general welfare” was
legitimate. King George had argued as much about his own abuses. Rather, Jefferson
specified the purpose of government in his Declaration. Governments were erected “to secure” the rights of “life, liberty, and the
pursuit of happiness," because only those rights were "inalienable", and wielding force for any other purpose was "sinful and tyrannical." This notion served as the ideological basis for entire
revolutionary war, which most of the constitution’s framers fought in. Six of
those framers had signed that very Declaration.

The savvy observer
might wonder why Jefferson chose to write “the pursuit of happiness” instead of
Locke’s more famous right to property. I don’t claim to know; perhaps it was
simply because it has more of a poetic, rhetorical flourish**. But what I do
know is that Jefferson certainly believed in the right to property, as his
quote guaranteeing “to everyone the free exercise of his industry and the
fruits acquired by it” would suggest. What I also know is that almost all of
his intellectual contemporaries held the same belief. Take, for instance, John
Adams:

“The moment the idea is admitted
into society that property is not as sacred as the laws of God, and that there
is not a force of law and public justice to protect it, anarchy and tyranny
commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not
commandments of Heaven, they must be made inviolable precepts in every society
before it can be civilized or made free.” — John Adams, 1787

In the very year the constitution was written, Adams
explicitly tied the term “public justice” to the protection of the “sacred”
right to property. His second cousin Samuel Adams concurred:

“[It is an] essential, unalterable
right in nature…held sacred and irrevocable by the subjects within the realm,
that what a man has honestly acquired is absolutely his own, which he may
freely give, but cannot be taken from him without his consent.” --Samuel Adams

These writings specify the purposes intended for American government
at the time of its creation. These ideas have a remarkable overlap with the Libertarian
principles of self-ownership and non-aggression. The authors of the constitution
were ahead of their times, and had the foresight to appreciate the value of tolerance,
equality under the law, and limited government.

But of course, the framers were not libertarians by the
modern definition. Neither were the people of the era. Most still supported
slavery, oppressing women, and lots of other things that modern liberty-lovers
reject outright. No constitution could have been ratified at all in 1789
without, for instance, protecting slavery. As such, the general purposes laid
out for government needed to be broad enough to include those activities. It
was for this reason that the preamble presented general, vague concepts that
everyone could agree on in the abstract, rather than outlining the specific
objectives government was to accomplish. The result is that despite the
remarkable similarities between the ideologies of the framers and my own, the
preamble is far vaguer than I would like.

The problem is not the actual meaning of the preamble so
much as the authors’ failure to specify that meaning for future generations. The
framers’ other writings expose that what they initially intended by those words
would not have encompassed many of the things the words encompass today. When
the people initially consented to those words, they were not consenting to what
those words mean today. Unfortunately, the text does not adequately articulate
the intentions of the authors, rendering the preamble subject to abuse.

As such, the purposes listed in the US constitution are not specific
enough to inhibit subjective reinterpretations and to fully protect natural
rights. Therefore, they open the door to illegitimate government. I support
amendments that make it more legitimate by narrowing/specifying this purpose.
However, I also recognize that at present, more purposes may be constitutionally
authorized than I’d like.

It is important to remember, however, that these purposes
may only be pursued within the powers granted towards those ends. The framers approach
to shaping those powers, and the implications on which powers can be wielded
today, will be discussed in Part II.